Rights of people with intellectual disability in police custody

Police are required to follow certain procedures when a person they have detained has an intellectual disability, so it is in the person's interests to tell the police they have an intellectual disability, or for someone to do so on their behalf.

steps are required to be taken taken to get a support person for the person with intellectual disability and other adjustments made to the interview and custody process

requires police to modify the way they conduct investigations, questioning and interviews (including allowing a support person to be present) where they are aware that the person being investigated has an intellectual disability

custody manager involved must inform the support person that they can assist the person with intellectual disability and ensure that the interview is conducted properly and fairly, and that they should identify any communication problems that arise

ensure that the detained person understands the warning the police give about the right to remain silent. This warning is sometimes referred to as the caution. This might require the Custody Manager to repeat the caution, explaining it in different terms or asking the support person to help explain it

Rights if the police wants to carry out a forensic procedure

Under the Crimes (Forensic Procedures) Act 2000 (NSW) police have wide powers to obtain forensic samples from suspects and prisoners. Samples include saliva from mouth swabs, fingerprints, hair strands and photographs of parts of a person's body.

Any forensic procedure can be carried out with the informed consent of a person. However, the legislation says that children and 'mentally incapable' people cannot give their consent. If police want to take a forensic sample from a person with intellectual disability the prudent course is to seek an order of the Court to do so as it may be that they are not able to give an informed consent.

Forensic procedures are divided into two categories:

'Non-intimate' forensic procedures:

examining, photographing, taking a swab or sample or cast or impression or measurement of part of the body other than the genitals, buttocks, or (in the case of a female or transgender person who identifies as a female) the breasts

taking a sample of hair other than pubic hair

taking a sample of or from under a nail

taking a hand print, fingerprint, foot print, or toe print

A senior police officer (of the rank of sergeant or above) can order the making of a non-intimate forensic procedure on a person if the senior police officer is satisfied that:

the person is a suspect and is under arrest

the suspect is not a child or a 'mentally incapable' person

there are reasonable grounds to believe that the suspect committed an indictable

there are reasonable grounds for believing that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence

the carrying out of the forensic procedure without consent is justified in all the circumstances

'Intimate' forensic procedures:

examining, photographing, taking a swab or sample from the genitals, buttocks or (in the case of a female or transgender person who identifies as a female) breasts

taking a sample of blood, taking of a sample of saliva other than by a mouth swab

taking a sample of pubic hair

taking a dental impression

Intimate forensic procedures can only be carried by order of a Magistrate or other authorised justice, after a hearing at which the person must normally be present. Before making such an order, the Magistrate must be satisfied of the following:

that the person is a suspect (defined as meaning someone who has been arrested or charged with the offence, or whom the police reasonably suspect of having committed the offence);

that there were reasonable grounds to believe that the suspect had committed a prescribed (i.e. indictable) offence or a related offence

that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the suspect had committed the offence of which he or she was suspected

that the carrying out of the forensic procedure was justified in all the circumstances

When carrying out a forensic procedure:

must be in circumstances affording reasonable privacy to the person undergoing the procedure

must be carried out in accordance with appropriate medical standards

may only be carried out by an authorised person. The Crimes (Forensic Procedures) Act 2000 (NSW) contains a list of all forensic procedures and the persons authorised to carry out those procedures. These are generally medical practitioners, nurses, dentists, and in some circumstances, police officers

If practicable, an intimate forensic procedure (other than the taking of a dental impression or an x-ray) is to be carried out by a person of the same sex as the person undergoing the procedure

on suspects or charged persons under 15 years of age must be carried out in the presence of a parent, or if both parents are unavailable, an independent witness over 18 years of age who is not a police officer and is not the suspect or charged person's parent

Police officers may be present during the carrying out of forensic procedures for the purposes of safety, security, continuity of evidence, investigation and the effective carrying out of the procedure